ARTICLE 19.
ACCESSORIES 127
PD 1612
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
The evidence of the prosecution is summarized by the trial court
as follows:
G.R. No. 111426 July 11, 1994
NORMA DIZON-PAMINTUAN, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
Puno and Puno for petitioner.
The Solicitor General for respondent.
DAVIDE, JR., J.:
The chief issue presented for our determination in this petition for
review under Rule 45 of the Rules of Court is the correctness of
the decision of 29 March 1993 of the Court of Appeals in CA-G.R.
CR No. 110241 which affirmed the decision of Branch 20 of the
Regional Trial Court of Manila in Criminal Case No. 88-
649542 finding the petitioner guilty of the violation of the Anti-
Fencing Law (P.D. No. 1612) but set aside the penalty imposed
and ordered the trial court to receive additional evidence on the
"correct valuation" of the pieces of jewelry involved for the sole
purpose of determining the penalty to be imposed.
The information in Criminal Case No. 88-64954 charged the
petitioner with the violation of the Anti-Fencing Law in that
on or about and during the period from
February 12, to February 24, 1988, inclusive,
in the City of Manila, Philippines, the said
accused, with intent of gain for herself or for
another, did then and there wilfully, unlawfully
and knowingly buy and keep in her possession
and/or sell or dispose of the following
jewelries, to wit: one (1) set of earrings, a ring
studded with diamonds in a triangular style,
one (1) set of earrings (diamond studded) and
one (1) diamond-studded crucifix, or all valued
at P105,000.00, which she knew or should
have known to have been derived from the
proceeds of the crime of robbery committed by
Joselito Sacdalan Salinas against the owner
Teodoro and Luzviminda Encarnacion.3
On the basis of the testimonies of prosecution witnesses Teodoro
Encarnacion (one of the offended parties), Cpl. Ignacio Jao, Jr.,
and Pfc. Emmanuel Sanchez, both of the Western Police District,
the trial court promulgated on 16 November 1990 its decision, the
dispositive portion of which reads:
WHEREFORE, the prosecution having proved
the guilty of the accused for violation of
Presidential Decree No. 1612 beyond
reasonable doubt, the accused Norma Dizon-
Pamintuan is hereby sentenced to suffer an
indeterminate penalty of imprisonment from
FOURTEEN (14) YEARS of prision mayor to
NINETEEN (19) YEARS of reclusion
temporal.
No civil liability in view of the recovery of the
items, subject-matter of this case.
With costs.4
Teodoro Encarnacion, Undersecretary,
Department of Public Works and Highways
testified that he has just arrived at his
residence located at Better Living Subdivision,
Paraaque at around 9:45 p.m. of February
12, 1988 coming from the Airport and
immediately proceeded inside the house,
leaving behind his driver and two housemaids
outside to pick-up his personal belongings
from his case. It was at this point that five
unidentified masked armed persons appeared
from the grassy portion of the lot beside the
house and poked their guns to his driver and
two helpers and dragged them inside his
house. That the men pointed a gun at him and
was made to lie face down on the floor. The
other occupants, namely his wife, the maids
and his driver were likewise made to lie on the
floor. Thereafter, the robbers ransacked the
house and took away jewelries and other
personal properties including cash. After the
intruders left the house he reported the matter
immediately to the police. He was then
interviewed by the Paraaque police and was
informed that an operation group would be
assigned to the case.
He likewise reported the matter to the Western
Police District on February 15, 1988. Two
days later, a group of WPD operatives came
over to his house and he was asked to prepare
a list of items of jewelry and other valuables
that were lost including a sketch of distinctive
items. He was later told that some of the lost
items were in Chinatown area as tipped by the
informer the police had dispatched. That an
entrapment would be made with their
participation, on February 14, 1988. As such,
they went to Camp Crame at around 9:00 a.m.
and arrived at the vicinity of 733 Florentino
Torres Street, Sta. Cruz, Manila at about
10:00 a.m.; that he is with his wife posed as a
buyer and were able to recognize items of the
jewelry stolen displayed at the stall being
tended by Norma Dizon Pamintuan; the
pieces were: 1 earring and ring studded with
diamonds worth P75,000 bought from
estimator Nancy Bacud (Exh. "C-2"), 1 set of
earring diamond worth P15,000 (Exh. "C-3")
and 1 gold chain with crucifix worth P3,000
(Exh. "C-4").
Corporal Ignacio Jao, Jr. of the WPD testified
that he was with the spouses Teodoro
Encarnacion, Jr. in the morning of February
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 24, 1988 and they proceeded to Florentino
Torres Street, Sta. Cruz, Manila at the stall of
Norma Dizon-Pamintuan together with Sgt.
Perez. After the spouses Encarnacion
recognized the items subject matter of the
robbery at the display window of the stall being
tended by the herein accused, they invited the
latter to the precinct and investigated the
same. They likewise brought the said
showcase to the WPD station. He further
testified that he has no prior knowledge of the
stolen jewelries of the private complainant
from one store to another.
Pfc. Emmanuel Sanchez of the WPD testified
that he reported for duty on February 24,
1988; that he was with the group who
accompanied the spouses Encarnacion in Sta.
Cruz, Manila and was around when the couple
saw some of the lost jewelries in the display
stall of the accused. He was likewise present
during the early part of the investigation of the
WPD station.5
The recovery of the pieces of jewelry, on the basis of which the
trial court ruled that no civil liability should be adjudged against
the petitioner, took place when, as testified to by Teodoro
Encarnacion, the petitioner "admitted that she got the items but
she did not know they were stolen [and that] she surrendered the
items and gave them to [his] wife."6
On the other hand, the version of the defense, as testified to by
Rosito Dizon-Pamintuan, is summarized by the trial court thus:
The defense presented only the testimony of
Rosito Dizon-Pamintuan who testified that he
is the brother of Norma Dizon-Pamintuan and
that sometime around 11:00 a.m. of February
24, 1985, he, together with the accused went
infront of the Carinderia along Florentino
Torres Street, Sta. Cruz, Manila waiting for a
vacancy therein to eat lunch. Suddenly, three
persons arrived and he overheard that Cpl.
Jao told her sister to get the jewelry from
inside the display window but her sister
requested to wait for Fredo, the owner of the
stall. But ten minutes later when said Fredo
did not show up, the police officer opened the
display window and got the contents of the
same. The display stall was hauled to a
passenger jeepney and the same, together
with the accused were taken to the police
headquarters. He likewise testified that he
accompanied his sister to the station and after
investigation was sent home.7
In convicting the petitioner, the trial court made the following
findings:
The prosecution was able
to prove by evidence that
the recovered items were
part of the loot and such
recovered items belong to
the spouses Encarnacion,
the herein private
complainants. That such
items were recovered by
the Police Officers from
the stall being tended by
the accused at that time.
Of importance, is that the
law provides a disputable
presumption of fencing
under Section 5 thereof, to
wit:
Mere possession of any
goods, article, item object,
or anything of value which
has been the subject of
robbery or thievery shall
be prima facie evidence of
fencing.
There is no doubt that the recovered items
were found in the possession of the accused
and she was not able to rebut the presumption
though the evidence for the defense alleged
that the stall is owned by one Fredo. A
distinction should likewise be made between
ownership and possession in relation to the
act of fencing. Moreover, as to the value of the
jewelries recovered, the prosecution was able
to show that the same is Ninety Three
Thousand Pesos (P93,000.00).8
The petitioner then appealed her conviction to the Court of
Appeals (CA-G.R. CR No. 11024) where she raised two issues:
(1) that the judgment was based on a mere presumption, and (2)
that the prosecution failed to show that the value of the jewelry
recovered is P93,000.00.
In its challenged decision of 29 March 1993, the Court of Appeals
disposed of the first issue in this wise:
The guilt of accused-appellant was
established beyond reasonable doubt. All the
elements of the crime of fencing in violation of
the Anti-Fencing Law of 1979 (P.D. No. 1612),
to wit:
1. A crime of robbery or theft has been
committed;
2. A person, not a participant in said crime,
buys, receives, possesses, keeps, acquires,
conceals, sells or disposes, or buys and sells;
or in any manner deals in any article or item,
object or anything of value;
3. With personal knowledge, or should be
known to said person that said item, object or
anything of value has been derived from the
proceeds of the crime of robbery or theft;
4. With intent to gain for himself or for another;
have been established by positive and
convincing evidence of the prosecution . . .
...
The fact that a crime of robbery has been
committed on February 12, 1988 is
established by the testimony of private
complainant Teodoro T. Encarnacion who
immediately reported the same to Paraaque
Police Station of the Southern Police District
(TSN, Hearings of October 3, 1988, November
9, 1988 and January 11, 1989; Exh. A) and
submitted a list and sketches of the jewelries
robbed, among other things, from their
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 residence located at Better Living Subdivision,
Paraaque, Metro Manila (Exh. C,
C-1 to C-4 and D).
The second element is likewise established by
convincing evidence. On February 24, 1988,
accused-appellant was found selling the
jewelries (Exhs. C-2, C-3 and C-4) which was
displayed in a showcase in a stall located at
Florentino Street, Sta. Cruz, Manila.
[Testimonies of Teodoro Encarnacion (id.
supra); Cpl. Ignacio Jao (TSN, Hearing of
February 13, 1989) and Pfc. Emmanuel
Sanchez (TSN, Hearing of June 4, 1989)].
On the element of knowledge that the items
are derived from the proceeds of the crime of
robbery and of intent to gain for herself or for
another, the Anti-Fencing Law provides:
Sec. 5. Presumption of
Fencing. Mere
possession of any good,
article, item, object, or
anything of value which
has been the subject of
robbery or thievery shall
be prima facie evidence of
fencing.
Knowledge and intent to gain are proven by
the fact that these jewelries were found in
possession of appellant and they were
displayed for sale in a showcase being tended
by her in a stall along Florentino Street, Sta.
Cruz, Manila.9
Nevertheless, the Court of Appeals was of the opinion that there
was not enough evidence to prove the value of the pieces of
jewelry recovered, which is essential to the imposition of the
proper penalty under Section 3 of P.D.
No. 1612. It opined that the trial court erred in concluding that "the
value of the recovered jewelries is P93,000.00 based on the bare
testimony of the private complainant and the self-serving list he
submitted (Exhs. C, C-2 and C-4, TSN, Hearing of October 3,
1993)."10
The dispositive portion of the Court of Appeals' decision reads:
WHEREFORE, finding that the trial court did
not commit any reversible error, its decision
dated October 26, 1990 convincing accused
appellant is hereby AFFIRMED with the
modification that the penalty imposed is SET
ASIDE and the Regional Trial Court (Branch
20) of Manila is ordered to receive evidence
with respect to the correct valuation of the
properties involved in this case, marked as
Exhibits "C", "C-2" and "C-4" for the sole
purpose of determining the proper penalty to
be meted out against accused under Section
3, P.D. No. 1612. Let the original records be
remanded immediately.11
Hence, this petition wherein the petitioner contends that:
I disposes, or buys and sells, or in any
PUBLIC RESPONDENT COURT OF
APPEALS MANIFESTLY ERRED IN
AFFIRMING THE DECISION OF PUBLIC
RESPONDENT JUDGE CAEBA, IN
BLATANT DISREGARD OF APPLICABLE
LAW AND WELL-ESTABLISHED
JURISPRUDENCE.
II
PUBLIC RESPONDENT COURT OF
APPEALS MANIFESTLY ERRED IN
REMANDING THE CASE TO THE COURT A
QUO FOR RECEPTION OF EVIDENCE FOR
THE PURPOSE OF DETERMINING THE
CORRECT PENALTY TO BE IMPOSED.12
On 23 February 1994, after the public respondents had filed their
Comment and the petitioner her Reply to the Comment, this Court
gave due course to the petition and required the parties to submit
their respective memoranda, which they subsequently complied
with.
The first assigned error is without merit.
Fencing, as defined in Section 2 of P.D. No. 1612 (Anti-Fencing
Law), is "the act of any person who, with intent to gain for himself
or for another, shall buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and sell, or in any manner
deal in any article, item, object or anything of value which he
knows, or should be known to him, to have been derived from the
proceeds of the crime of robbery or theft."
Before P.D. No. 1612, a fence could only be prosecuted for and
held liable as an accessory, as the term is defined in Article 19 of
the Revised Penal Code. The penalty applicable to an accessory
is obviously light under the rules prescribed in Articles 53, 55, and
57 of the Revised Penal Code, subject to the qualification set forth
in Article 60 thereof. Nothing, however, the reports from law
enforcement agencies that "there is rampant robbery and thievery
of government and private properties" and that "such robbery and
thievery have become profitable on the part of the lawless
elements because of the existence of ready buyers, commonly
known as fence, of stolen properties," P.D.
No. 1612 was enacted to "impose heavy penalties on persons
who profit by the effects of the crimes of robbery and theft."
Evidently, the accessory in the crimes of robbery and theft could
be prosecuted as such under the Revised Penal Code or under
P.D. No. 1612. However, in the latter case, he ceases to be a
mere accessory but becomes aprincipal in the crime of fencing.
Elsewise stated, the crimes of robbery and theft, on the one hand,
and fencing, on the other, are separate and distinct
offenses.13 The state may thus choose to prosecute him either
under the Revised Penal Code or P.D. No. 1612, although the
preference for the latter would seem inevitable considering that
fencing is a malum prohibitum, and P.D. No. 1612 creates a
presumption of fencing14 and prescribes a higher penalty based
on the value of the property.15
The elements of the crime of fencing are:
1. A crime of robbery or theft has
been committed;
2. The accused, who is not a
principal or accomplice in the
commission of the crime of robbery
or theft, buys, receives, possesses,
keeps, acquires, conceals, sells or
manner deals in any article, item,
object or anything of value, which
has been derived from the proceeds
of the said crime;
3
 3. The accused knows or should
have known that the said article,
item, object or anything of value has
been derived from the proceeds of
the crime of robbery or theft; and
4. There is, on the part of the
accused, intent to gain for himself or
for another.
In the instant case, there is no doubt that the first, second, and
fourth elements were duly established. A robbery was committed
on 12 February 1988 in the house of the private complainants who
afterwards reported the incident to the Paraaque Police, the
Western Police District, the NBI, and the CIS, and submitted a list
of the lost items and sketches of the jewelry taken from them
(Exhibits "C" and "D"). Three of these items stolen, viz., (a) a pair
of earrings and ring studded with diamonds worth P75,000.00
(Exhibit "C-2"); (b) one set of earrings worth P15,000.00 (Exhibit
"C-3"); and (c) a chain with crucifix worth P3,000.00 (Exhibit "C-
4"), were displayed for sale at a stall tended to by the petitioner in
Florentino Torres Street, Sta. Cruz, Manila. The public display of
the articles for sale clearly manifested an intent to gain on the part
of the petitioner.
The more crucial issue to be resolved is whether the prosecution
proved the existence of the third element: that the accused knew
or should have known that the items recovered from her were the
proceeds of the crime of robbery or theft.
One is deemed to know a particular fact if he has the cognizance,
consciousness or awareness thereof, or is aware of the existence
of something, or has the acquaintance with facts, or if he has
something within the mind's grasp with certitude and
clarity.16 When knowledge of the existence of a particular fact is
an element of an offense, such knowledge is established if a
person is aware of a high probability of its existence unless he
actually believes that it does not exist.17 On the other hand, the
words "should know" denote the fact that a person of reasonable
prudence and intelligence would ascertain the fact in performance
of his duty to another or would govern his conduct upon
assumption that such fact exists.18 Knowledge refers to a mental
state of awareness about a fact. Since the court cannot penetrate
the mind of an accused and state with certainty what is contained
therein, it must determine such knowledge with care from the
overt acts of that person. And given two equally plausible states
of cognition or mental awareness, the court should choose the
one which sustains the constitutional presumption of innocence. 19
Since Section 5 of P.D. No. 1612 expressly provides that "[m]ere
possession of any good, article, item, object, or anything of value
which has been the subject of robbery or thievery shall be prima
facie evidence of fencing," it follows that the petitioner is
presumed to have knowledge of the fact that the items found in
her possession were the proceeds of robbery or theft. The
presumption is reasonable for no other natural or logical inference
can arise from the established fact of her possession of the
proceeds of the crime of robbery or theft. This presumption does
not offend the presumption of innocence enshrined in the
fundamental law.20 In the early case of United States vs.
Luling, 21 this Court held:
It has been frequently decided, in case of
statutory crimes, that no constitutional
provision is violated by a statute providing that
proof by the state of some material fact or
facts shall constitute prima facieevidence of
guilt, and that then the burden is shifted to the
defendant for the purpose of showing that
such act or acts are innocent and are
committed without unlawful intention.
(Commonwealth vs. Minor, 88 Ky., 422.)
In some of the States, as well as in England,
there exist what are known as common law
offenses. In the Philippine Islands no act is a
crime unless it is made so by statute. The state
having the right to declare what acts are
criminal, within certain well defined limitations,
has a right to specify what act or acts shall
constitute a crime, as well as what proof shall
constitute prima facie evidence of guilt, and
then to put upon the defendant the burden of
showing that such act or acts are innocent and
are not committed with any criminal intent or
intention.
In his book on constitutional law,22 Mr. Justice Isagani A. Cruz
said:
Nevertheless, the constitutional presumption
of innocence may be overcome by contrary
presumptions based on the experience of
human conduct [People vs. Labara, April 20,
1954]. Unexplained flight, for example, may
lead to an inference of guilt, as 'the wicked flee
when no man pursueth, but the righteous is as
bold as a lion. Failure on the part of the
accused to explain his possession of stolen
property may give rise to the reasonable
presumption that it was he himself who had
stolen it [U.S. vs. Espia, 16 Phil. 506]. Under
our Revised Penal Code, the inability of an
accountable officer to produce funds or
property entrusted to him will be
considered prima facie evidence that he has
appropriated them to his personal use [Art.
217]. According to Cooley, the constitutional
presumption will not apply as long as there is
"some rational connection between the fact
proved and the ultimate fact presumed, and
the inference of one fact from proof of another
shall not be so unreasonable as to be purely
arbitrary mandate" [1 Cooley, 639].
The petitioner was unable to rebut the presumption under P.D.
No. 1612. She relied solely on the testimony of her brother which
was insufficient to overcome the presumption, and, on the
contrary, even disclosed that the petitioner was engaged in the
purchase and sale of jewelry and that she used to buy from a
certain Fredo.23
Fredo was not presented as a witness and it was not established
that he was a licensed dealer or supplier of jewelry. Section 6 of
P.D. No. 1612 provides that "all stores, establishments or entitles
dealing in the buy and sell of any good, article, item, object or
anything of value obtained from an unlicensed dealer or supplier
thereof, shall before offering the same for sale to the public,
secure the necessary clearance or permit from the station
commander of the Integrated National Police in the town or city
where such store, establishment or entity is located." Under the
Rules and Regulations24 promulgated to carry out the provisions
of Section 6, an unlicensed dealer/supplier refers to any person,
partnership, firm, corporation, association or any other entity or
establishment not licensed by the government to engage in the
business of dealing in or supplying "used secondhand articles,"
which refers to any good, article, item, object or anything of value
obtained from an unlicensed dealer or supplier, regardless of
whether the same has actually or in fact been used.
We do not, however, agree with the Court of Appeals that there is
insufficient evidence to prove the actual value of the recovered
articles.
As found by the trial court, the recovered articles had a total value
of P93,000.00, broken down as follows:
4
 a) one earring and ring studded with diamonds
(Exh. "C-2") P75,000.00
b) one set of earring (Exh. "C-3")
P15,000.00
c) one gold chain with crucifix (Exh. "C-4")
P3,000.00
No. 88-64954 and orders the remand of the case for the trial court
to receive evidence with respect to the correct value of the
properties involved. The decision of the Regional Trial Court is
AFFIRMED subject to the modification of the penalty which is
hereby reduced to an indeterminate penalty ranging from Ten (10)
years and One (1) day of Prision Mayor maximum as minimum to
Eighteen (18) years and Five (5) months of Reclusion
Temporal maximum as maximum, with the accessory penalties of
the latter.

These findings are based on the testimony of Mr. SO ORDERED.

Encarnacion 25 and on Exhibit "C,"26 a list of the items
which were taken by the robbers on 12 February 1988,
together with the corresponding valuation thereof. On Cruz, Bellosillo, Quiason and Kapunan, JJ., concur.
cross-examination, Mr. Encarnacion re-affirmed his
testimony on direct examination that the value of the
pieces of jewelry described in Exhibit "C-2" is
P75,000.0027 and that the value of the items described
in Exhibit "C-3" is P15,000.00, although he admitted that
only one earring and not the pair was
recovered. 28 The cross-examination withheld any
question on the gold chain with crucifix described in
Exhibit "C-4." In view, however, of the admission that
only one earring was recovered of the jewelry described
in Exhibit "C-3," it would be reasonable to reduce the
value from P15,000.00 to P7,500.00. Accordingly, the
total value of the pieces of jewelry displayed for sale by
the petitioner and established to be part of the proceeds
of the robbery on 12 February 1988 would be
P87,000.00.

Section 3(a) of P.D. No. 1612 provides that the penalty of prision
mayor shall be imposed upon the accused if the value of the
property involved is more than P12,000.00 but does not exceed
P22,000.00, and if the value of such property exceeds the latter
sum, the penalty of prision mayor should be imposed in its
maximum period, adding one year for each additional P10,000.00;
the total penalty which may be imposed, however, shall not
exceed twenty years. In such cases, the penalty shall be
termed reclusion temporal and the accessory penalty pertaining
thereto provided in the Revised Penal Code shall also be
imposed. The maximum penalty that can be imposed in this case
would then be eighteen (18) years and five (5) months, which is
within the range of reclusion temporal maximum. Applying the
Indeterminate Sentence law which allows the imposition of an
indeterminate penalty which, with respect to offenses penalized
by a special law, shall range from a minimum which shall not be
lower than the minimum prescribed by the special law to a
maximum which should not exceed the maximum provided
therein, the petitioner can thus be sentenced to an indeterminate
penalty ranging from ten (10) years and one (1) day of prision
mayor maximum, as minimum to eighteen (18) years and five (5)
months of reclusion temporal maximum as maximum, with the
accessory penalties corresponding to the latter.

In the light of the foregoing, the Court of Appeals erred in setting

aside the penalty imposed by the trial court and in remanding the
case to the trial court for further reception of evidence to
determine the actual value of the pieces of jewelry recovered from
the petitioner and for the imposition of the appropriate penalty.

We do not agree with the petitioner's contention, though, that a

remand for further reception of evidence would place her in
double jeopardy. There is double jeopardy when the following
requisites concur: (1) the first jeopardy must have attached prior
to the second, (2) the first jeopardy must have validly been
terminated, and (3) the second jeopardy must be for the same
offense as that in the first.29 Such a concurrence would not occur
assuming that the case was remanded to the trial court.

WHEREFORE, the instant petition is partly GRANTED by setting

aside the challenged decision of the Court of Appeals in CA-G.R.
CR No. 11024 insofar as it sets aside the penalty imposed by
Branch 20 of the Regional Trial Court of Manila in Criminal Case
5